Flagstaff grandmother's 'tea party' shirt spurs lawsuit

Diane Wickberg didn't intend to become a public defender of the First Amendment. But now that she's found herself in that position, she's not backing down from the fight.

The 55-year-old Flagstaff grandmother, with the help of the Goldwater Institute, is suing Coconino County Recorder Candace Owens after Wickberg was twice stopped at the polls for wearing a "tea party" T-shirt.

Every Tuesday for the past two years, Wickberg has attended a meeting of her Flagstaff tea-party group wearing a T-shirt that depicts the American flag and the Constitution. On May 18, the day of the state sales-tax vote, Wickberg said she threw on that T-shirt and a pair of jeans, drove her 11-year-old grandson to school and headed to her polling place.

"I'm a jeans and T-shirt person," said Wickberg, who works as a fundraiser for her grandson's school. "I didn't think about what I was wearing."

She was told by a poll worker that she needed to either change her shirt or cover it up.

"They said the shirt I was wearing was making a political statement," Wickberg said. "All it says is 'We the People - Reclaiming our Constitution.' "

There was nobody else there voting, so Wickberg was allowed to vote wearing her shirt. She did so, and then called the Coconino County Recorder's Office to find out why the shirt was not allowed.

State statute says that "no political or electioneering materials may be displayed" within 75 feet of any polling place. A violation is a Class 2 misdemeanor.

There is no definition of electioneering in state statute. Owens said election workers are trained to contact either her or the county elections director if they observe a potential instance of electioneering.

"Decisions are made on a case-by-case basis," she said. "It's a fine line."

And in this case, the tea party offers a unique challenge. While it is not a recognized political party in Arizona, it has begun to be used in similar ways. Some groups, including Wickberg's Flagstaff group, do not endorse candidates; others do. Candidates are increasingly linking themselves to the movement on their websites.

"The thing the counties are struggling with is that candidates have co-opted the tea-party name and moniker as their own, as part of their sales pitch," Assistant Secretary of State Jim Drake said.

Owens said that's why she stands by her decision.

"My determination was that they are political in nature," she said. "They've been organized for that very purpose, and there were a number of candidates that were endorsed by the tea party or said they were."

After that first voting incident, the Goldwater Institute got involved and the Secretary of State's Office, which oversees elections, weighed in.

"It is completely improper to harass or exclude people from a polling place because of the group they are associated with or because of something they wear on a T-shirt," Goldwater attorney Diane Cohen said.

In a July 1 letter, state elections director Amy Bjelland said "the shirt did not attempt to persuade or influence voters to vote for or against a particular candidate, party or proposition in this election."

But she said in an Aug. 2 letter that the state and Coconino County could not comply with Goldwater's request that they issue a blanket statement allowing tea-party apparel because the circumstances of each situation must be considered.

"For instance, if a candidate posts political signs or issues direct-mail pieces that read 'tea-party candidate,' then wearing a shirt to the polls that says 'tea party' could be construed to be advocacy in support or opposition to a candidate," Bjelland wrote.

Wickberg decided to wear the shirt again to vote in the Aug. 24 primary election, bringing Bjelland's first letter and someone from the Goldwater Institute with her. She was again told to cover up the shirt and, after putting on a sweater, was allowed to vote.

Monday, the Goldwater Institute filed a lawsuit in federal court on Wickberg's behalf. It alleges that Owens "harassed, threatened, silenced, and chilled (Wickberg's) rights to freedom of speech and association by improperly enforcing electioneering law."

The lawsuit asks the judge to allow Wickberg to wear her shirt to vote on Nov. 2 as well as asks that Owens be required to develop criteria in determining electioneering.

"What we would really like to see here and in other counties are objective standards to use in enforcing electioneering laws so people aren't using their own personal biases to make such serious decisions," Cohen said.

Wickberg said she just wants to protect the First Amendment rights of Arizona voters.

"I'm not just standing up for conservative values. What if someone was to wear a shirt with a union logo on it or a shirt from the Sierra Club?" she said. "If somebody has on a red T-shirt, are they going to say you are a Republican and can't vote? It's ridiculous and absurd."

She also wants to set a positive example for her grandson. She said it was concern about his future that got her involved with the tea party.

Regardless of whether an injunction is issued in time, Wickberg said she will wear her tea-party shirt to vote on Nov. 2.

The Secretary of State's Office is not issuing any specific recommendations in dealing with the situation. Owens said her election workers will again be instructed to call her if they see the shirts or anything else they believe to be electioneering.

Maricopa County elections spokeswoman Yvonne Reed said no changes have been made in Maricopa County at this point.

"For now, we will continue as we have in the past," she said. "Whatever can be considered electioneering material will not be allowed."